State v. Braziel

968 So. 2d 853, 2007 WL 3087135
CourtLouisiana Court of Appeal
DecidedOctober 24, 2007
Docket42,668-KA
StatusPublished
Cited by25 cases

This text of 968 So. 2d 853 (State v. Braziel) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Braziel, 968 So. 2d 853, 2007 WL 3087135 (La. Ct. App. 2007).

Opinion

968 So.2d 853 (2007)

STATE of Louisiana, Appellee
v.
Kelvin Dewayne BRAZIEL, Appellant.

No. 42,668-KA.

Court of Appeal of Louisiana, Second Circuit.

October 24, 2007.

*856 Peggy J. Sullivan, Monroe, for Appellant.

Paul J. Carmouche, District Attorney, Tommy J. Johnson, Assistant District Attorney, for Appellee.

Before WILLIAMS, CARAWAY and MOORE, JJ.

WILLIAMS, J.

The defendant, Kelvin Dewayne Braziel, was charged by bill of information with distribution of a Schedule II Controlled Dangerous Substance ("CDS"), cocaine, a violation of LSA-R.S. 40:967(A)(1). Following a jury trial, the defendant was convicted as charged. He was adjudicated a second habitual offender and sentenced to serve 15 years at hard labor without benefit of probation or suspension of sentence. For the following reasons, we affirm the defendant's conviction and sentence. Further, we order that the incorrect transcript which appears in the appellate record be removed from the record and we order the court minutes be amended to reflect the sentence ordered in the correct transcript. We also order the trial court minutes to be amended to reflect the sentence of 15 years at hard labor without benefit of probation or suspension of sentence and without benefit of parole for the first two years.

FACTS

On December 5, 2000, Agent Lee Jay Scott and Agent Rodney Demery of the Shreveport Police Department were working undercover as part of a citywide narcotics investigation to expose "street-level" drug dealers in areas in which the department had received complaints of drug activity. The agents patrolled the area in an unmarked vehicle equipped with an electronic listening device, and back-up officers, who were waiting nearby in a van, were able to listen to transactions. Agent Scott and Agent Demery were carrying currency in various denominations to use for drug transactions and had photocopied the currency.

Agent Scott and Agent Demery observed the defendant and six other individuals standing near a residence in the 100 block of North Dale Street. The agents drove up to the group and asked where they could "get two," meaning two "rocks" of crack cocaine. The defendant gestured for the agents to go in another direction, but one of the other individuals wanted them to pull into the driveway of the residence. Considering this to be unsafe, Agent Demery suggested that they drive around the block. When the agents returned, Agent Scott asked the defendant if he could have "two," and the defendant pointed to a location in the 200 block of North Dale Street. After circling the block a second time, the agents drove to the location where the defendant had indicated. Agent Scott gave the defendant two of the previously photographed $10 bills, and the defendant gave him two clear plastic bags with a red heart, each containing what appeared to be a rock of crack cocaine.

Agent Scott signaled the back-up officers ("arrest team") that the transaction had been completed and provided the team with a physical description of the defendant. Agent Scott and Agent Demery left the scene, and the arrest team arrived and arrested the defendant. Thereafter, Agent Scott and Agent Demery returned to the scene to identify the defendant as the person who had sold them the substance. The buy money was still in the *857 defendant's possession at the time of his arrest. Agent Scott conducted a field test on the substance they had purchased from the defendant, and it tested positive for cocaine. Subsequent tests conducted by a forensic chemist at the North Louisiana Crime Laboratory confirmed that the substance was cocaine, a Schedule II CDS.

The defendant was charged by bill of information with distribution of a Schedule II CDS, cocaine, a violation of LSA-R.S. 40:967(A)(1). Following a jury trial, the defendant was convicted as charged. The trial court adjudicated the defendant a second habitual offender and sentenced him to serve 15 years at hard labor without benefit of probation or suspension of sentence.

DISCUSSION

Sufficiency of the Evidence

The defendant contends the evidence presented at trial was insufficient to support a conviction of distribution of cocaine. According to the defendant, the state failed to meet its burden of proving that he was the person who sold the crack cocaine to the undercover agents.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, XXXX-XXXX (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, XXXX-XXXX (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, XXXX-XXXX (La.11/14/03), 858 So.2d 422.

A reviewing court may intervene in the trier of fact's decision only to the extent necessary to guarantee due process of law. State v. Pigford, supra; State v. Mussall, 523 So.2d 1305 (La.1988). Accordingly, in cases relying on circumstantial evidence to prove one or more elements of the crime, when the fact-finder reasonably rejects the hypothesis of innocence advanced by the defendant at trial, that hypothesis fails, and the verdict stands unless the evidence suggests an alternative hypothesis sufficiently reasonable that rational jurors could not find proof of the defendant's guilt beyond a reasonable doubt. State v. Pigford, supra.

Cocaine is classified as a Schedule II CDS, and it is unlawful for any person to knowingly or intentionally distribute or dispense a Schedule II CDS. See, LSA-R.S. 40:964(A)(4) and 40:967(A)(1). To present sufficient evidence of distribution of a CDS, the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Kelley, 36,602 (La.App.2d Cir.1/29/03), 836 So.2d 1243; State v. Manning, 30,809 (La.App.2d Cir. 6/24/98), 715 *858 So.2d 668. In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson v. Virginia, supra, rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Brady, 414 So.2d 364 (La.1982); State v. Powell, 27,959 (La. App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

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Bluebook (online)
968 So. 2d 853, 2007 WL 3087135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-braziel-lactapp-2007.